Citation Nr: 0709923
Decision Date: 04/05/07 Archive Date: 04/16/07
DOCKET NO. 04-30 400 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for a
healed fracture of the left lower fibula with scar.
2. Whether new and material evidence has been received to
reopen a claim for service connection for contusion of the
back.
3. Whether new and material evidence has been received to
reopen a claim for service connection for numbness of the
hands and feet.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Timothy D. Rudy, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1968 to
October 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania.
The issues concerning new and material evidence are addressed
in the REMAND portion of the decision below and are REMANDED
to the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDING OF FACT
The veteran's healed fracture of the left lower fibula with
scar is manifested by some decreased range of motion of the
left ankle and subjective complaints of pain not well
correlated with x-ray findings and thought to be mainly
attributable to the veteran's back disorder.
CONCLUSION OF LAW
The schedular criteria for a rating in excess of 10 percent
for a healed fracture of the left lower fibula with scar have
not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1),
4.1- 4.10, 4.71a, DC 5262 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify and Assist
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) became law. The VCAA and implementing
regulations apply to the case at hand, and the requirements
therein appear to have been met.
In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claims,
and no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claims. See 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. Specifically, the RO has obtained records
of treatment reported by the veteran addressing his claim.
There is no indication from the record of additional medical
treatment for which the RO has not obtained, or made
sufficient efforts to obtain, corresponding records.
The Board notes that the RO attempted to meet VA's duty to
notify the veteran of the evidence necessary to substantiate
his claims in a letter issued in January 2004. By this
letter, the RO also notified the veteran of exactly which
portion of that evidence was to be provided by him and which
portion VA would attempt to obtain on his behalf. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this
letter, the veteran also was advised to submit additional
evidence to the RO, and the Board finds that this instruction
is consistent with the requirement of 38 C.F.R. § 3.159(b)(1)
that VA request that a claimant provide any evidence in his
or her possession that pertains to a claim.
Here, the noted January 2004 "duty to assist" letter was
issued before the appealed rating decision. The Board notes
deficiencies in the January 2004 "duty to assist" letter,
but is aware that all VA notices must be read in the context
of prior, relatively contemporaneous communications to the
appellant. See Mayfield, supra.
During the pendency of this appeal, and after the rating
decision on appeal had been issued, the United States Court
of Appeals for Veterans Claims (Court) issued important
decisions affecting the development of the veteran's issues
on appeal. In the consolidated appeal of Dingess and Hartman
v. Nicholson, the Court held that the VCAA requires VA to
provide the claimant with notice of missing information and
evidence that will assist in substantiating all the elements
of a claim. Dingess and Hartman v. Nicholson, 19 Vet. App.
473 (2006).
In the Mayfield case cited above, the Court addressed the
meaning of prejudicial error in the context of the VCAA duty-
to-notify. Mayfield, supra. Here, the Board finds no
possibility of prejudicial error to the veteran. As
explained below, evidence in the record demonstrates the
veteran is not entitled to an increased rating for his
service-connected healed fracture of the left lower fibula.
Therefore, any lack of notice by the VA to the veteran as now
required by Dingess and Hartman constitutes harmless error.
II. Increased rating
Factual Background
The veteran underwent a VA orthopedic examination in January
2004. According to the examination report, the veteran was
currently unemployed after injuring his back at work in 1992.
According to the report, it was the veteran's back problem
that precluded his employment. The veteran complained of
pain in his medial left lower leg as well as the medial
aspect of the left ankle. He also noted an increasingly
prominent mass over the last several years involving the
medial aspect of his foot. It was noted this area was very
tender and painful.
The veteran said that he had pain in the left leg in the
ankle and medial foot region ever since an injury in Vietnam,
but that it had gotten worse over the last several years.
The pain was in the medial aspect of the left ankle and
proximal to the medial malleolus involving the lower tibia.
The pain went down into the medial foot region where the lump
was located. The veteran described the pain as constant and
he was never pain free. He estimated that in intensity it
was usually a 4 to 5 on a scale of 10, and would go to a 6 or
7 with standing and walking. The veteran told the examiner
that if he stood for more than 30 minutes or walked for more
than 50 yards the pain would increase to a 6 or 7. He said
he had these episodes daily if he was on his feet for any
length of time and it took hours to resolve. Occasionally
the veteran reported pain at 8 to 9 on a scale of 10 and this
was when he could not bear any weight on his foot. These
episodes occurred a few times a year when the veteran would
have to stay off his feet for several days. There was no
obvious cause for these events. The veteran also had bad
cramps in his left foot without obvious cause and these began
two to three years after service. The veteran currently took
nothing for his pain, except for a rare aspirin that upset
his stomach. He occasionally applied Ben Gay without effect.
Standing and walking were aggravating factors. The veteran
estimated that the range of motion of the left ankle was
decreased by a quarter when pain flared up to the 6 to 7
level. During flare ups, the veteran could not stand and sat
and elevated his leg. It was noted there was no history of
previous osteomyelitis, and the veteran denied current fever
or chills. There was no evidence of a current active
infection, including erythema, or induration in the lower
extremity or drainage.
The examiner said that it was difficult to separate out the
impact of the left ankle problem from the veteran's back
problem. The veteran also said he felt that the ankle was
weak as his foot twisted and turned easily, especially when
he walked on uneven surfaces. He claimed a stiff ankle with
decreased range of motion. The veteran noted swelling if he
was on his feet for any length of time. The medial aspect of
the ankle and the distal tibial region always felt warm to
the veteran and he denied any erythema or drainage. There
was no locking or evidence of abnormal motion.
On examination, the veteran appeared to be in pain as he
entered and exited chairs slowly. The examiner noted that it
appeared primarily to be his back that was troubling the
veteran. The veteran walked with a limp and favored the left
leg. He said he walked with a limp ever since he left
service. The veteran could not walk on his toes or heels.
There was no swelling or pain noted with the right ankle.
There was decreased range of motion of the left ankle. For
example, plantar flexion was from 30 degrees to 45 degrees
(normal is 0 to 45 degrees), and dorsiflexion was to 30
degrees from 0 degrees (normal is 0 to 20 degrees). Also,
inversion of the left foot measured to 20 degrees (while
normal active range of motion was from 0 to 40 degrees).
There was no swelling or erythema, but there was pain with
inversion, eversion, flexion, and extension of the ankle.
Two inches below and slightly anterior to the medial
malleolus there was a bony prominence that was very tender
extending to a radius of about an inch and a quarter. There
was also some tenderness over the insertion of the Achilles
tendon on the left calcaneus side. Knee jerks, ankle jerks,
and posterior tibial pulses were positive bilaterally, but
the dorsalis pedis pulses were absent on the left ankle and
+2 on the right ankle. X-rays showed a sesamoid bone at the
site of the palpable bony prominence on the medial left foot
which the examiner said should not be a source of pain. The
examiner said this sesamoid bone was not as likely as not
secondary to the veteran's service-connected injury. The
examiner also noted that the extent of pain with palpation
and motion and restriction of motion did not correlate well
with the X-ray findings. X-rays of the right and left ankle
and the right foot were normal. X-rays of the left foot
showed the sesamoid bone noted above.
Analysis
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 (2006) and
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has
reviewed the veteran's service medical records and all other
evidence of record pertaining to the history of his service-
connected disability, and has found nothing in the historical
record that would lead to a conclusion that the current
evidence of record is inadequate for rating purposes.
Disability ratings are assigned in accordance with the VA's
Schedule for Rating Disabilities, and are intended to
represent the average impairment of earning capacity
resulting from disability. 38 U.S.C.A. § 1155. The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2006).
Although the evaluation of a service-connected disability
requires a review of the veteran's medical history with
regard to that disorder, the primary concern in a claim for
an increased evaluation for service-connected disability is
the present level of disability. Where entitlement to
compensation has already been established, and an increase in
the disability rating is at issue, the present level of
disability is of primary concern. Although a rating
specialist is directed to review the recorded history of a
disability in order to make a more accurate evaluation, the
regulations do not give past medical reports precedence over
the current findings. Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
In evaluating disabilities of the musculoskeletal system,
additional rating factors include functional loss due to pain
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. 38 C.F.R.
§ 4.40. Inquiry also must be made as to weakened movement,
excess fatigability, incoordination, and reduction of normal
excursion of movements, including pain on movement.
38 C.F.R. § 4.45. The intent of the schedule is to recognize
painful motion with joint or periarticular pathology as
productive of disability and to recognize actually painful,
unstable, or malaligned joints, due to healed injury, as
entitled to at least the minimum compensable rating for the
joint. 38 C.F.R. § 4.59.
The Board recognizes that the Court, in DeLuca v. Brown, 8
Vet. App. 202 (1995), held that, where evaluation is based on
limitation of motion, the question of whether pain and
functional loss are additionally disabling must be
considered. 38 C.F.R. §§ 4.40, 4.45. The provisions
contemplate inquiry into whether there is crepitation,
limitation of motion, weakness, excess fatigability,
incoordination, and /or impaired ability to execute skilled
movement smoothly, and pain on movement, swelling, deformity,
or atrophy of disuse. Instability of station, disturbance of
locomotion, and interference with sitting, standing, and
weight-bearing also are related considerations. Id. Within
this context, a finding of functional loss due to pain must
be supported by adequate pathology and evidenced by the
visible behavior of the claimant. Johnston v. Brown, 10 Vet.
App. 80, 85 (1997).
The Board notes, however, that the Court has held that §
4.40 does not require a separate rating for pain but rather
provides guidance for determining ratings under other
diagnostic codes assessing musculoskeletal function. See
Spurgeon v. Brown, 10 Vet. App. 194 (1997).
The Board observes that the words "slight", "moderate",
and "severe" are not defined in the Rating Schedule.
Rather than applying a mechanical formula, the Board must
evaluate all of the evidence to the end that its decisions
are "equitable and just". 38 C.F.R. § 4.6. It also should
be noted that use of descriptive terminology such as "mild"
by medical examiners, although an element of evidence to be
considered by the Board, is not dispositive of an issue. All
evidence must be evaluated in arriving at a decision
regarding an increased rating. 38 U.S.C.A. § 7104(a);
38 C.F.R. §§ 4.2, 4.6 (2006).
Except as otherwise provided in the Rating Schedule, all
disabilities, including those arising from a single disease
entity, are to be rated separately, unless the conditions
constitute the same disability or the same manifestation.
38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259
(1994). The critical inquiry in making such a determination
is whether any of the symptomatology is duplicative or
overlapping; the appellant is entitled to a combined rating
where the symptomatology is distinct and separate. Esteban
v. Brown, 6 Vet. App. at 262.
The veteran is currently rated 10 percent disabled under DC
5262 for his service-connected healed fracture of the left
lower fibula with scar. Under DC 5262, impairment of the
tibia and fibula with malunion is rated 10 percent when there
is slight knee or ankle disability, 20 percent when there is
moderate knee or ankle disability, and 30 percent when there
is marked knee or ankle disability. 38 C.F.R. § 4.71a, DC
5262 (2006). As noted, the RO has rated the veteran's
service-connected healed fracture of the left lower fibula,
which is an unlisted condition, under DC 5262 by analogy, as
the veteran does not have impairment of the tibia and fibula
with malunion.
The veteran limped and complained of cramps in the left foot
and constant pain near and about a tender prominent mass on
the medial aspect of the left foot with intense episodes a
few times annually. However, the veteran took no pain
medicine, except for a rare aspirin or occasional Ben Gay
application. The medical evidence shows that there was no
locking or evidence of abnormal motion, and no swelling or
erythemas, but pain with inversion, eversion, flexion, and
extension of the ankle. The January 2004 VA examination also
found decreased range of motion for the left ankle with
plantar flexion from 30 to 45 degrees and dorsiflexion from
30 to 0 degrees. The left ankle also lacked a dorsalis pedis
pulse. However, the examining physician said the veteran's
pain complaints did not correlate well with x-ray findings
which showed an essentially normal left ankle. Hence, a
higher 20 percent rating is not warranted under DC 5262.
In order to warrant a 20 percent evaluation under DC 5262,
which is the next highest rating available for impairment of
tibia and fibula, the veteran's disability would have to be
manifested by moderate disability. However, medical evidence
of record has revealed no evidence of moderate disability due
to residuals of a healed fracture of the left lower fibula.
The medical evidence of record shows some loss of range of
motion of the left ankle as a result of this disorder and
subjective complaints of pain that the examiner thought could
be attributed to the veteran's back condition rather than to
his service-connected disorder. The medical evidence of
record does not demonstrate any additional functional loss of
the left lower fibula to warrant an increased evaluation
under DC 5262.
The January 2004 VA examination failed to mention any scar
once associated with the fracture of the left lower fibula.
However, the August 1996 VA exam did note a scar that was
located on the upper shin, about two inches in length, of a
whitish color and tender on palpation. A separate rating for
the scar on the veteran's left fibula is not warranted. The
current medical evidence has not shown that the scar of the
left fibula is poorly nourished with repeated ulceration, or
painful and tender on objective demonstration. 38 C.F.R.
§ 4.118, DC 7804 (2006). Accordingly, a separate compensable
rating under the holding in Esteban v. Brown, 6 Vet. App. at
259, is not warranted.
With regard to establishing loss of function due to pain, it
is necessary that complaints be supported by adequate
pathology and be evidenced by the visible behavior of the
claimant. 38 C.F.R. § 4.40. The Board finds that the
effects of pain reasonably shown to be due to the veteran's
residuals of a healed fracture of the left lower fibula with
scar are contemplated in the 10 percent rating currently
assigned. The January 2004 VA examiner noted the veteran
appeared to be in pain, but said that it appeared that
primarily it was his back that was troubling him. There is
no indication that the veteran's pain, due to disability of
the once broken left fibula, causes functional loss greater
than that contemplated by the 10 percent evaluation now
assigned for the period. 38 C.F.R. §§ 4.40, 4.45; DeLuca v.
Brown, supra.
The Board does not find that the evidence is so evenly
balanced that there should be doubt as to any material issue
regarding the matter of a rating in excess of 10 percent for
the service-connected healed fracture of the left lower
fibula. The preponderance of the evidence is clearly against
the claim. 38 U.S.C.A. § 5107.
ORDER
A rating in excess of 10 percent for a healed fracture of the
left lower fibula with scarring is denied.
REMAND
During the pendency of the appeal, the case of Kent v.
Nicholson was decided. Kent v. Nicholson, 20 Vet. App. 1
(2006). In this case additional information was set out to
define sufficient notice in claims for reopening issues based
on new and material evidence. In pertinent part, a claimant
was to be notified of the basis of the prior denial and what
constitutes new and material evidence. The notice provided
in this case did not contain this information. While
appellant has submitted virtually no evidence that would be
considered new and material, that may in part be because he
is not clear on what is needed.
The notice letter that was provided to the veteran did not
contain the basis of any prior denial, and did not appear to
note the dates of the last final denials on any basis.
Moreover, the definition of new and material evidence
provided was the one in effect prior to the end of August
2001. The correct citation in subsequent post-decisional
documents does not cure the insufficient notice initially
provided.
Accordingly, the case is REMANDED for the following action:
The RO/AMC should provide notice
consistent with Kent, supra. Such
notice should include the basis of the
final denials and the correct
definition of new and material evidence
as well as any other pertinent
requirements.
Then, and whether or not evidence is
received, the matter should be
readjudicated after appellant and his
representative have had an opportunity
to resond. If the benefits sought are
not granted, a supplemental statement
of the case should be issued and the
case returned to the Board in
accordance with appropriate procedures.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs